BCR Questions

Friday, October 3, 2014

$6.2 million inducement ended BCR corruption trial

A study¹ in the Journal of Criminal Law and Criminology examined plea bargaining and innocence. It revealed,

"...that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem."

"It is important to note that prosecution agencies and law societies across Canada, as well as the Criminal Code, provide some relevant guidance to lawyers working in the criminal justice system. For example, in the Deskbook of the Public Prosecution Service of Canada, the chapter concerning plea and sentence discussions and issue resolution indicates that Crown counsel’s approach to resolution discussions must be based on important principles, including fairness, openness and accuracy..."

If Justice Anne MacKenzie did not know about the $6.2 M inducement, the test of fairness and openness was not met. If the judge did know that a substantial payment for the benefit of defendants was a vital element of the plea agreements, it should have been rejected, in accordance with Supreme Court of Canada directions. I believe MacKenzie chose to ignore the cash inducement and accept very lenient terms of sentencing so that the trial could end. Soon after, she was elevated to the B.C. Court of Appeal.

That Basi and Virk walked with a minimum of inconvenience is not particularly bothersome since they were in court as sacrificial lambs following corruption that extended broadly. However, it is entirely inappropriate that their political masters paid no price and now Liberals use control of the legislature to ensure a continued lack of transparency.

This week, NDP MLA Kathy Corrigan, a member of the Public Accounts Committee, made a motion,

"That Mr. David Loukidelis and Mr. Graham Whitmarsh be requested to appear before the committee with respect to additional questions relating to the committee’s continued consideration of the Auditor General’s report titled An Audit of Special Indemnities."

The vote, with NDP MLA Bruce Ralston in the Chair, was predictable, with BC Liberals against and others in favour:

marc.dalton.mla@leg.bc.ca - LIB, Maple Ridge-Mission

greg.kyllo.mla@leg.bc.ca - LIB, Shuswap

mike.morris.mla@leg.bc.ca - LIB, Prince George-Mackenzie

linda.reimer.mla@leg.bc.ca - LIB, Port Moody-Coquitlam

sam.sullivan.mla@leg.bc.ca - LIB, Vancouver-False Creek

laurie.throness.mla@leg.bc.ca - LIB, Chilliwack-Hope

john.yap.mla@leg.bc.ca - LIB, Richmond-Steveston

Kathy.Corrigan.mla@leg.bc.ca - NDP, Burnaby-Deer Lake

david.eby.mla@leg.bc.ca - NDP, Vancouver-Point Grey

selina.robinson.mla@leg.bc.ca - NDP, Coquitlam-Maillardville

shane.simpson.mla@leg.bc.ca - NDP, Vancouver-Hastings

vicki.huntington.mla@leg.bc.ca - IND, Delta South

Ms. Huntington, a thoughtful and effective independent MLA, said this to the committee,

"Undoubtedly, the Auditor General's office did an enormous amount of work. It was with a narrow question in mind, however. It did not pursue the relationship between the plea bargaining and the lifting of the indemnity — or the indemnity. Thus, it leaves open the questions that are being pursued right now.

"All that being said and my discomfort that this committee would be pursuing it in this manner, I do think there are issues here that have never been explained to the public, which the public is deeply concerned about — always have been and still bring it up if the issue arises in any way, shape or form, at least to me.

"I think there is an issue of transparency here that if we can resolve would be to the benefit of the public. As difficult as the decision has been to me, I will support it — the motion — because I believe the public deserves the transparency that this discussion might provide them."

Lew, a reader and occasional commenter, has been following this issue closely and expressing himself to members of the Legislature. I think his recent correspondence is worth repeating:

"This is written in regard to the September 30, 2014 proceedings of the Select Standing Committee on Public Accounts considering the Auditor General Report: An Audit of Special Indemnities. You have all been previously copied on my January 20, 2014 letter to the Auditor General, and I wrote you on July 07, 2014 with further observations and questions, so I will not repeat them here.

"When I wrote him with questions on his report, the Auditor General responded that he was not at liberty to provide any answers except to the Select Standing Committee on Public Accounts, within the scope of the audit or his mandate. I therefore forwarded my questions to the Committee with a request that my questions be asked. To this date the questions have not been asked of him, nor of any other persons before the Committee. In addition, several members of the Committee have expressed that they have outstanding questions. This is obviously a very unsatisfactory situation given the public’s right to know.

"This morning [9/30] a motion was moved to take steps to assist in that regard but it was voted down by the BC Liberal members of the Committee.

"To members Corrigan, Huntington, Eby, Simpson, and Robinson, I extend my appreciation for your efforts to date, and a hope that you do not consider this matter over.

"To members Morris, Sullivan, Dalton, Kyllo, Throness, Yap, and Reimer, I would like to say that you have earned my contempt for your actions. My feelings would not be as strong if there were any of you who had answers the questions I have asked. But you do not and none of you appear interested in obtaining or sharing them in any event. That is contrary to your duty both as an MLA and as a Committee member.

"There were two plea deals negotiated in this case.

One between defence counsel and the special prosecutor involving pleas and sentencing recommendations, disclosed to the court through a joint submission and a Statement of Facts.

And another between defence counsel and the government represented by the Assistant Deputy Attorney General (ADAG) dated October 14, 2010 involving guilty pleas in exchange for release of financial liability, which was not disclosed to either the special prosecutor or the court.

"The Auditor General says in his report auditors were told that the guilty pleas negotiated between defence counsel and the special prosecutor would never have been entered by the defendants but for the prior plea deal (October 14, 2010) between the ADAG and the defendants.

"MLA Morris says, “I think, to David Eby, that assumptions are made that this $6 million was used as an inducement to plead guilty. We don't know the discussions that took place between counsel and the special prosecutor in this case, and they're the ones that negotiated the guilty plea. We will never know what those discussions were all about. As a former police officer, I've been intimately involved in plea bargaining in the past.”

"The discussions between the special prosecutor and defence counsel are not the issue here. The issue is the October 14, 2010 plea deal between the defendants and the ADAG to extinguish the special indemnity agreements by way of an Agreement to Release in exchange for guilty pleas and how that affected the course of justice. And we do in fact know quite a bit about that agreement and the surrounding discussions from the Auditor General’s report.

"Notwithstanding MLA Morris’ reference to the wrong discussions, he has tendered to the Committee his expertise as a police officer with intimate knowledge of plea bargains. Perhaps he would be prepared to assist the Committee’s understanding of how these work in practice by advising:

how many plea bargains he witnessed or was a part of that involved securing guilty pleas through cash payments by the Crown to the defendants;

the amount of the highest cash payment;

whether the court was advised of these payments made in exchange for guilty pleas; and

what action he took as a police officer regarding these payments.

"In the event MLA Morris has no plea bargains of this nature to report in his experience, perhaps he could advise the Committee why that would be, whether one of that nature would be illegal, and what the duty of the Committee would be if it discovered through its deliberations on the Basi/Virk indemnities that government officials may have been party to such a plea bargain."

16 comments:

Before being elected to the British Columbia Legislature, Mike had a 32-year career in the RCMP, retiring in 2005 as the Superintendent for the North District. Mike has also been an adjudicator and mediator with the Health Professions Review Board, has served on the Drug Benefit Council for BC since 2009, and is the Past President of the BC Trappers Association.

A little off topic bit I found it interesting that Hunter Harrison, the president of CP Rail claims that a 7 mile long unused railway track is worth 400 million bucks, but bought BC rail which was a1000 mile long operating railroad with over 1300 employees and tens of thousands of box cars, hundreds of locomotives for 700 million when you factor in the tax write off that came with the sale, oops I mean lease when he was president of of CN Rail, as far as im concerned this is the best description of the screwing the citizens of BC got from Gordon Campbell and the Liberal party of BC with the broken promise about not selling BC Rail!

I believe it was closer to 2400 miles/kilometers long (makes no difference - its a colossal screwing! A point well made about the disparity between BC Rail and the Arbutus line! Maybe $400 would be a more realistic figure). Thanks (I think) Norm, for bringing this up, although Ive long since given up hope of seeing any justice. Maybe it will grate a little on the perpetrators nerves, just a little, to know there are still some of this that remember the scant details of this horrendous affair.

Worthy of mention is the 'removal' of Judge Bennett who was 'seized' by this case but when her rulings 'seemed' to lean toward the defence calling certain witnesses, she was 'promoted' to a higher court position (perhaps against her principles) by pm harper on the recommendation of BC senior prosecutor berardino.

Thank you Norm for not letting this issue die. The whole scandal surrounding the sale of the BCR and the subsequent cover-up is BC's version of Watergate, except here in BC Nixon would have been re-elected. Same dirty tricks, but no Woodward and Bernstein employed by media like the Washington Post, willing to expose the corrupt in power. Instead, the media here licked boots for advertising handouts and access - and still do. God help us.

This is not a trivial matter. If the judge in the BC Rail criminal trial knew about the written offer by the Attorney General’s ministry to release Mr. Basi and Mr. Virk from any and all liability relative to their conduct on the BC Rail matters, including liability for over $6 million ONLY IF they pleaded guilty and kept quiet about it, she was required by section 606 of the Criminal Code of Canada to reject the guilty pleas, because there is no way by legal definition the pleas could be deemed voluntary under those terms. If she did not know, it was because there were actions and a conspiracy including officials of the Attorney General’s ministry to ensure she did not learn of it. Those actions might well rise to obstruction of the natural course of justice.

The Auditor General’s report clearly lays out all the elements required for what former Attorney General Geoff Plant has publically written could not happen as a matter of law. Mr. Plant says there could be no legal agreement tying the waiver of the $6 million to the guilty pleas. But the Auditor General says there was. His report also clearly establishes the fact that the Assistant Deputy Attorney General made the offer to the defendants in writing through their counsel and stipulated that the Agreement to Release was conditional on the guilty pleas and would not be signed until after the pleas were delivered.

So, with all the elements of an improper (if not illegal) inducement present through the use of the indemnities reviewed by the Auditor General as currency, what do the BC Liberal members of the committee established to examine the report do? They quash a motion to interview the individuals involved in the deal. That action constitutes a clear dereliction of the Committee’s duty to properly examine the Auditor General’s report. How can the Committee possibly present the Auditor General’s audit report to the Legislature with scores of unanswered questions arising from the report unanswered?

Despite writing directly to the Auditor General, the Clerk of the Legislature, and every member of the Select Standing Committee on Public Accounts individually, none of the questions I have regarding the Auditor General’s audit of the special indemnities relative to Mr. Basi or Mr. Virk were asked of any witness before the Committee, and none of the members of the Committee can or will answer the questions.

Since reporting to the Legislature means reporting to the citizens of British Columbia, the Committee’s report had better include the fact it is incomplete in the extreme, and the fact that legitimate questions from the public to the Committee were disregarded. Anything less will expose the report as a sham.

BC Liberals and their friends love to bring up the Fast Ferries as an example of the NDP's incompetence — while ignoring their own budgetary excesses on the Port Mann bridge, the Trade and Convention Centre and BC Place (to name a few.)

Mismanaging tax dollars is bad… but the BC Rail sale/lease and the scandal surrounding it is far worse. It cannot be allowed to just go away — and the sooner it is dealt with, the better, as memories and documents have a habit of fading away over time.

I wrote to all the members of the committee this morning. It's simple, either this is a perversion of justice, or the BCLib members would be anxious to call Whitmarsh and Loukidelis to tell us why it isn't perversion of justice. I have no expectation of any openness or accountability on this file ever. It's over for this one.But the actions by the BCLib members of the Pub Acc Committee this week should not be forgotten.

From a Canada Revenue Agency tax bulletin: "¶ 32. Where personal legal expenses of an employee (or of his or her family) are paid or reimbursed by the employer, the amount paid is a taxable benefit to the employee. "

Payments of Basi's & Virk's legal expenses should have resulted in millions of dollars of taxable income. Did the Province of British Columbia also agree to pay income taxes for the two.

Or, did the Province of British Columbia act in any other way to relieve the income tax burdens arising from the plea agreements?

Given that Basi and Virk were guided by excellent lawyers, it is a certainty that potential income tax liabilities were dealt with specifically.

It may be that payment of $6.2 million turned into nearly $9 million in ultimate liability. Either that, or the CRA agreed to special treatment of taxes due.

Government withholds details of financial matters related to the plea agreement for obvious reasons.

I’ve been thinking about how disconcerting it must be for David Loukidelis and Graham Whitmarsh to have the BC Liberal members of the Select Standing Committee on Public Accounts quash a motion that would have given them the opportunity to clear up the issues that affect their reputations.

After all, as chair of the Law Enforcement Board of Alberta, Mr. Loukidelis must be vexed that someone as legally astute as former Attorney General Geoff Plant is of the opinion that an agreement tying the guilty pleas in the BC Rail trial to the waiver of liability for over $6 million in legal fees would be illegal. And yet the Auditor General says that is precisely what happened under Mr. Loukidelis’ watch. Surely he must be chomping at the bit to clear the air.

Mr. Whitmarsh must also be anxious to explain his role in signing the backdated Agreement to Release that wiped out the indemnities containing the liability provisions, because that constituted the government’s obligation under the deal that Mr. Plant says could not exist as a matter of law.

The BC Liberal members of the Committee have done both men a great disservice and I plan to write both with my commiserations and a copy of my questions to the Auditor General and the Committee to see if they wish to clarify the issues. Hopefully many of you will afford them the same opportunity. It’s the least we can do.

David Loukidelis is currently Chair at the Law Enforcement Board of Alberta. His address is: Chair,Law Enforcement Review BoardJustice and Solicitor General 1502 Oxford Tower10025 - 102A AvenueEdmonton, AB T5J 2Z2

Graham Whitmarsh is currently principal at Tangram 1, and his e-mail is gwhitmarsh@tangram1.com

According to its website, Tangram Strategies is an independent group of action oriented, outcome focused, problem solvers with deep experience in the major issues facing healthcare, information technology and risk management; an agile team of senior executives who bring exceptional business, crown agency and governmental expertise to solve the most difficult problems, recover critical projects and address the defining challenges of today.

Of interest are two of his team members. Lynda Cranston, who resigned as CEO of Provincial Health Services Authority, because she approved 118 wage increases that contravened government policy, according to the chairman of the board that employed her. And Jon Schubert, who according to the Globe and Mail announced his resignation as CEO of ICBC after a scathing government audit raised concerns about excessive compensation for managers and Finance Minister Kevin Falcon called the situation at ICBC “unacceptable”.

I suppose that would be the same Whitmarsh who signed the letter firing Roderick MacIsaac, leading to his suicide, and who is $400,000 better off thanks to a very generous severance package paid for by the BC taxpayers.

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